Legal issues arising from the RIAA's lawsuits of intimidation brought against ordinary working people, and other important internet law issues. Provided by Ray Beckerman, P.C.

Monday, July 27, 2009

Jury selection consumes first day of Sony v. Tenenbaum

BY MARC BOURGEOIS

Almost the entirety of day one of the Sony v. Tenenbaum trial was devoted to jury selection. Opening statements will begin tomorrow at 9:00a.m. My updates for this trial will likely be limited to end of day wrap-ups as I am not permitted to bring any electronic devices into the courthouse, much less the courtroom, as I lack the needed credentials to do so.

The morning began with a very brief reading of Judge Gertner's order on the summary judgment motion that was entered early in the morning. She also stated that any constitutional questions raised by the parties in regard to damages would be a question saved for post trial, if and when there is a damage award.

The parties then discussed timing for each side to present their case, as the judge has announced that the trial should last one week. Judge Gertner stated that she wanted the trial to move expeditiously, but would not impose specific time limits on either side. She wants to have the case to the jury by the end of the week, but deliberation could go to next week.

Prof. Nesson then asked the court about whether or not the jury would be instructed on the range of damages as is stated in the copyright act, and stated he would like the jury instruction not to include the specific range, but rather ask that the jury if it awards damages simply be instructed to award damages that are just. Cites Feltner v. Columbia as his authority for this instruction. Plaintiffs object and Judge Gertner states that she will take the issue under advisement and rule before the opening statements, as Professor Nesson has indicated that the form of the instruction will play in to how he presents his opening.

Professor Nesson then stated two other objections, he would like to modify the geography of the courtroom to better present the defense to the jury, and the issue of Debbie Rosenbaum participating in the case. The courtroom was slightly modified with the position of the defense counsel table, and Ms. Rosenbaum is permitted to sit at the counsel table and assist Professor Nesson.

The jury selection voir dire then began. The voir dire went very quickly with the group in opening court, with several jurors being excused for their inability to sit on the case due to unresolvable scheduling issues. No one claims to have heard, read, or seen anything about the case and no one claims to know any parties or witnesses to the case. The selection then proceeded in an adjacent courtroom with voir dire by the parties, one juror at a time, without the presence of the remainder of the jury.

This process lasted until about 4:15pm until a panel of 16 was selected, and each side was allowed 3 peremptory challenges, leaving a total of 10 jurors to sit on the case. After the jurors were selected they were sworn in and asked to come back tomorrow morning at 9:00am for opening statements.

Parties then brought up some issues of their concern prior to opening statements. Plaintiffs do not wish for Professor Nesson to being up certain issues that were raised in voir dire that they do not believe are relevant to the case. Some of these issues include his representation of Tenenbaum pro bono, references to terms more appropriate to a criminal proceeding, his personal choice of wardrobe, and Joel's (as opposed to both parties') right to a jury. Judge Gertner agrees with Plaintiffs.

The Plaintiffs also bring up the use of demonstrative exhibits in opening statements. Plaintiffs indicate they do not plan to use any demonstrative exhibits in their opening statement, but ask to know if Defendant does. Professor Nesson states that he does have two. One is in image of the Necker Cube. The other is a box of styrofoam, to which he intends to liken the image of an album and intends to show breaking into pieces along with the advent of the internet.

Plaintiffs object to these demonstrations, but Judge Gertner overrules and explains that the opening statement must have relevance to the testimony that witnesses will provide, but gives license for counsel to present how they choose. What these demonstratives will mean won't be found out until tomorrow.

Judge Gertner then denies Defendant's proposed jury instruction not listing the statutory range. The range will be available to the jury.

Judge Gertner brought up the issue of the innocent infringer defense. There was then some discussion between the parties, but the defense will not be allowed in this case because it was not asserted early enough in the case.

Judge Gertner then gave an order regarding the testimony which will be allowed by Johan Pouwelse. He will be allowed to testify as an expert with regards to the times of appearance of Napster, iTunes, and other peer-to-peer related services. He will also be able to testify as to alternative methodologies to those employed by Dr. Jacobson. He will not be allowed to testify to anything relating to the marketplace for music or anything else related to economics.

The day ended with Judge Gertner encouraging the parties to move the case quickly. She specifically stated that she didn't see the need for the MediaSentry witness, as there isn't an issue as to the fact that their investigation led to the correct person. Mr. Reynolds for the Plaintiffs argued that there were other issues to which MediaSentry would testify about, such as about what exactly was uploaded or downloaded.

Plaintiffs then offered for the defense the list of the first three witnesses they will call tomorrow, which are G. Wade Leak (Sony), Chris Connelly (MediaSentry), and Mark Matteo (Cox Communications)

[Ed. note. I cannot for the life of me understand why the Judge is deciding at this time what the jury instruction will allow in terms of statutory damages. How can she determine that, without seeing what actual damages have been shown?

Also it sounds like she's decided to allow a free for all on the opening statements, so the RIAA lawyers will talk about how their business model is hurting and it's because of all of those "pirates" out there.

"Judge Gertner ... specifically stated that she didn't see the need for the MediaSentry witness, as there isn't an issue as to the fact that their investigation led to the correct person. ... the Plaintiffs argued that there were other issues ... such as ... what exactly was uploaded or downloaded."

These look like issues the Defendant would like MS to testify about. He may have conceded to having run Kazaa software and being the user identified by MediaSentry, but I assume he hasn't conceded that actual downloads of copyrighted music took place from his computer?

The day ended with Judge Gertner encouraging the parties to move the case quickly. She specifically stated that she didn't see the need for the MediaSentry witness, as there isn't an issue as to the fact that their investigation led to the correct person.

It looks to me as if Judge Gertner is treating Media Sentry "methods" as indisputable either as to sufficiency or as to infallibility, and thereby giving plaintiffs a free pass on what amounts to the heart of their case.

I hope to $DEITY someone can tell me either a) I'm dead wrong as to the significance of this decision, or b) I'm dreaming that I interpreted the above correctly, or c) both.

IMHO there was nothing wrong with that ruling IN THIS CASE. Defendant admits that they found the guy they're looking for, so what difference does it make that MediaSentry's methods are sloppy and result in 50% or more false positives. This wasn't one of them.

That Defendant was using P2P software is not in question, as you say. I speculate that perhaps the RIAA wants to use MediaSentry to help argue that Defendant was violating the distribution right. Or, to at least make the issue confusing, so the jury doesn't properly consider it (like in Thomas-Rasset).

Ray, I'm not sure what you meant, but for clarity's sake... The fact that MediaSentry has a high error rate means their methodology is always flawed, even if they "get it right" on occasion. As such, MediaSentry's evidence shouldn't even get them past the Doe stage, I believe. Now that we're past the Doe stage, though, there's little reason to stop.

"The day ended with Judge Gertner encouraging the parties to move the case quickly. She specifically stated that she didn't see the need for the MediaSentry witness, as there isn't an issue as to the fact that their investigation led to the correct person."

This to me is the most troubling oops, and apparently I'm not the only one to point this out :)

Well, but the validity of MS's forensic matters, or what was actually on the HD.

btw, I predict.. that they're going to award approx $85,000 per song. For a grand total of $2.55 million dollar award

I am a business lawyer in New York City, practicing at Ray Beckerman, P.C.. The purpose of this site is to collect and share information about the wave of sham "copyright infringement" lawsuits started by four large record companies, and other areas of concern to digital online copyright law, and to internet law in general. -Ray Beckermanbeckermanlegal.com(Attorney Advertising)

"[T]he Court is concerned about the lack of facts establishing that Defendant was using that IP address at that particular time. Indeed, the [complaint] does not explain what link, if any, there is between Defendant and the IP address. It is possible that Plaintiff sued Defendant because he is the subscriber to IP address .... As recognized by many courts, just because an IP address is registered to an individual does not mean that he or she is guilty of infringement when that IP address is used to commit infringing activity." -Hon. Barry Ted Moskowitz, Chief Judge, S.D. California. January 29, 2013, AF Holdings v. Rogers"The complaints assert that the defendants – identified only by IP address – were the individuals who downloaded the subject “work” and participated in the BitTorrent swarm. However, the assumption that the person who pays for Internet access at a given location is the same individual who allegedly downloaded a single sexually explicit film is tenuous, and one that has grown more so over time." - Hon. Gary R. Brown, Magistrate Judge, E.D.N.Y. May 1, 2012, K-Beech v. Does 1-37"The concern of this Court is that in these lawsuits, potentially meritorious legal and factual defenses are not being litigated, and instead, the federal judiciary is being used as a hammer by a small group of plaintiffs to pound settlements out of unrepresented defendants."-Hon. S. James Otero, Dist. Judge, Central Dist. California, March 2, 2007, Elektra v. O'Brien, 2007 ILRWeb (P&F) 1555"The University has adequately demonstrated that it is not able to identify the alleged infringers with a reasonable degree of technical certainty...[C]ompliance with the subpoena as to the IP addresses represented by these Defendants would expose innocent parties to intrusive discovery....[T]he Court declines to authorize discovery and quashes the subpoena as to Does # 8, 9, and 14" -Hon. Nancy Gertner, Dist. Judge, Dist. Massachusetts, November 24, 2008, London-Sire Records v. Does 1-4"[C]ounsel representing the record companies have an ethical obligation to fully understand that they are fighting people without lawyers... that the formalities of this are basically bankrupting people, and it's terribly critical that you stop it...." -Hon. Nancy Gertner, Dist. Judge, Dist. Massachusetts, June 17, 2008, London-Sire v. Does 1-4"Rule 11(b)(3) requires that a representation in a pleading have evidentiary support and one wonders if the Plaintiffs are intentionally flouting that requirement in order to make their discovery efforts more convenient or to avoid paying the proper filing fees. In my view, the Court would be well within its power to direct the Plaintiffs to show cause why they have not violated Rule 11(b) with their allegations respecting joinder. [I]t is difficult to ignore the kind of gamesmanship that is going on here.....These plaintiffs have devised a clever scheme... to obtain court-authorized discovery prior to the service of complaints, but it troubles me that they do so with impunity and at the expense of the requirements of Rule 11(b)(3) because they have no good faith evidentiary basis to believe the cases should be joined." -Hon. Margaret J. Kravchuk, Magistrate Judge, District of Maine, January 25, 2008, Arista v. Does 1-27, 2008 WL 222283, modified Oct. 29, 2008"[N]either the parties' submissions nor the Court's own research has revealed any case holding the mere owner of an internet account contributorily or vicariously liable for the infringing activities of third persons.....In addition to the weakness of the secondary copyright infringement claims against Ms. Foster, there is a question of the plaintiffs' motivations in pursuing them..... [T]here is an appearance that the plaintiffs initiated the secondary infringement claims to press Ms. Foster into settlement after they had ceased to believe she was a direct or "primary" infringer." -Hon. Lee R. West, District Judge, Western District of Oklahoma, February 6, 2007, Capitol v. Foster, 2007 WL 1028532"[A]n overwhelming majority of cases brought by recording companies against individuals are resolved without so much as an appearance by the defendant, usually through default judgment or stipulated dismissal.....The Defendant Does cannot question the propriety of joinder if they do not set foot in the courthouse." -Hon. S. James Otero, Central District of California, August 29, 2007, SONY BMG v. Does 1-5, 2007 ILRWeb (P&F) 2535"Plaintiffs are ordered to file any future cases of this nature against one defendant at a time, and may not join defendants for their convenience."-Hon. Sam Sparks and Hon. Lee Yeakel, District Judges, Western District of Texas, November 17, 2004, Fonovisa v. Does 1-41, 2004 ILRWeb (P&F) 3053"The Court is unaware of any other authority that authorizes the ex parte subpoena requested by plaintiffs."-Hon. Walter D. Kelley, Jr., District Judge, Eastern District of Virginia, July 12, 2007, Interscope v. Does 1-7, 494 F. Supp. 2d 388, vacated on reconsideration 6/20/08"Plaintiffs contend that unless the Court allows ex parte immediate discovery, they will be irreparably harmed. While the Court does not dispute that infringement of a copyright results in harm, it requires a Coleridgian "suspension of disbelief" to accept that the harm is irreparable, especially when monetary damages can cure any alleged violation. On the other hand, the harm related to disclosure of confidential information in a student or faculty member's Internet files can be equally harmful.....Moreover, ex parte proceedings should be the exception, not the rule."-Hon. Lorenzo F. Garcia, Magistrate Judge, District of New Mexico, May 24, 2007, Capitol v. Does 1-16, 2007 WL 1893603"'Statutory damages must still bear some relation to actual damages." Hon. Michael J. Davis, Dist. Judge, U.S.District Court, Dist. Minnesota, January 22, 2010, Capitol Records v. Thomas-Rasset"[T]his court finds that defendants' use of the same ISP and P2P networks to allegedly commit copyright infringement is, without more, insufficient for permissive joinder under Rule 20. This court will sever not only the moving defendants from this action, but all other Doe defendants except Doe 2." -Hon. W. Earl Britt, District Judge, Eastern District of North Carolina, February 27, 2008, LaFace v. Does 1-38, 2008 WL 544992"[L]arge awards of statutory damages can raise due process concerns. Extending the reasoning of Gore and its progeny, a number of courts have recognized that an award of statutory damages may violate due process if the amount of the award is "out of all reasonable proportion" to the actual harm caused by a defendant's conduct.[T]hese cases are doubtlessly correct to note that a punitive and grossly excessive statutory damages award violates the Due Process Clause....."Hon. Marilyn Hall Patel, Dist. Judge, N.D. California, June 1, 2005, In re Napster, 2005 US DIST Lexis 11498, 2005 WL 1287611"[P]laintiffs can cite to no case foreclosing the applicability of the due process clause to the aggregation of minimum statutory damages proscribed under the Copyright Act. On the other hand, Lindor cites to case law and to law review articles suggesting that, in a proper case, a court may extend its current due process jurisprudence prohibiting grossly excessive punitive jury awards to prohibit the award of statutory damages mandated under the Copyright Act if they are grossly in excess of the actual damages suffered....."-Hon. David G. Trager, Senior District Judge, Eastern Dist. New York, November 9, 2006, UMG v. Lindor, 2006 U.S. Dist. LEXIS 83486, 2006 WL 3335048"'[S]tatutory damages should bear some relation to actual damages suffered'....(citations omitted) and 'cannot be divorced entirely from economic reality'". -Hon. Shira A. Scheindlin, Dist. Judge, Southern Dist. New York, August 19, 2008, Yurman v. Castaneda"The Court would be remiss if it did not take this opportunity to implore Congress to amend the Copyright Act to address liability and damages in peer to peer network cases.... The defendant is an individual, a consumer. She is not a business. She sought no profit from her acts..... [T]he damages awarded in this case are wholly disproportionate to the damages suffered by Plaintiffs." -Hon. Michael J. Davis, District Judge, Dist. Minnesota, September 24, 2008, Capitol v. Thomas"If there is an asymmetry in copyright, it is one that actually favors defendants. The successful assertion of a copyright confirms the plaintiff's possession of an exclusive, and sometimes very valuable, right, and thus gives it an incentive to spend heavily on litigation. In contrast, a successful defense against a copyright claim, when it throws the copyrighted work into the public domain, benefits all users of the public domain, not just the defendant; he obtains no exclusive right and so his incentive to spend on defense is reduced and he may be forced into an unfavorable settlement." US Court of Appeals, 7th Cir., July 9, 2008, Eagle Services Corp. v. H20 Industrial Services, Inc., 532 F.3d 620"Customers who download music and movies for free would not necessarily spend money to acquire the same product.....RIAA’s request problematically assumes that every illegal download resulted in a lost sale."-Hon. James P. Jones, Dist. Judge, Western Dist. Virginia, November 7, 2008, USA v. Dove